“Parents should be able to guide and nurture the child to avoid conflicts or entanglements with the law.”
Every so often we hear stories about children being arrested or detained for committing crimes. Observers surmise that the child may have committed the offense because he or she was abused, exploited, abandoned, or neglected, or coming from a dysfunctional family. It is also possible that the child has been living on the streets, is a member of a gang, or resides in a community with high levels of criminality or drug abuse (see Section 4(g), A.M. No. 02-1-18-SC).
In line with this, the Supreme Court passed procedural rules and court guidelines, such as the 2019 Revised Rule on Children in Conflict with the Law, to see to it that the State shall apply the principles of restorative justice to children in conflict with the law. This objective will only be achieved if the rules and guidelines are effective, efficient, and protect the rights of children in conflict with the law.
Who is a child in conflict with the law? He or she is a person below 18 years of age who is alleged as, accused of, or adjudged as having committed an offense under Philippine Laws. The definition does not include a person who, at the time of the apprehension or taking of custody of a child, or receipt of a subpoena pursuant to a complaint-affidavit, shall have reached the age of 18 (Section 1 in relation to Section 4(s), A.M. No. 02-1-18-SC).
On the other hand, a “child at risk” refers to a child who is vulnerable to and at risk of committing criminal offenses because of personal, family and social circumstances. It refers to children who violate ordinances enacted by local governments concerning juvenile status offenses such as curfew violations, truancy, parental disobedience, and tobacco or alcohol use (Section 4(g), A.M. No. 02-1-18-SC).
It also includes light offenses and misdemeanors against public order or safety such as disorderly conduct, public scandal, harassment, drunkenness, public intoxication, criminal nuisance, vandalism, gambling, mendicancy, littering, public urination, and trespassing. These children shall not be penalized but will instead be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents, pursuant to Section 57-A of Republic Act No. 10630 (Section 4(g), A.M. No. 02-1-18-SC).
The child in conflict with the law shall enjoy the presumption of minority and shall enjoy all the rights of a child in conflict with the law until proven to be 18 years old or older at the time of the commission of the offense. The age of the child shall be primarily determined by his or her certificate of live birth. However, in its absence, similar authentic documents such as baptismal certificates and school records or any pertinent document that shows the date of birth of the child may be used (Section 5).
In the absence of the said documents due to loss, destruction or unavailability, the testimony of the child, the testimony of a member of the family related to the child by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the child, the testimonies of other persons, the physical appearance of the child and other relevant evidence, shall suffice (Section 5).
A child 15 years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program (Section 7). Intervention refers to a series of individualized treatment activities or programs designed to address issues that caused the child to commit an offense. These may include counseling, skills training, education, and other activities that are aimed to improve and enhance the child’s psychological, emotional, and psychosocial well-being (Section 4).
The following factors shall be considered in formulating a diversion program for the child: (a) the child’s feelings of remorse for the offense he/she committed; (b) the parents’ or legal guardian’s ability to guide and supervise the child; (c) the victim’s view about the propriety of the measures to be imposed; (d) the availability of community-based programs for rehabilitation and reintegration of the child; (e) the past records, if any, involving the child in conflict with the law; and (f) the likelihood that the child will be an obvious threat to himself/herself and the community (Section 32).
The Committee shall also include a plan that will secure the satisfaction of the civil liability of the child in the program. The parents shall be liable for damages unless proven, to the satisfaction of the court, that they were exercising reasonable supervision over the child at the time the child committed the offense, and that they exerted reasonable effort and utmost diligence to prevent or discourage the child from committing another offense (Section 32).
If it is determined at initial contact that the child is 15 years of age or below, the barangay or law enforcement authority, in consultation with the local social welfare and development officer, has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative. The child shall be subjected to a community-based intervention program, unless the best interest of the child requires the referral of the child to a youth care facility or “Bahay Pag-asa”. The minimum age allowable for children to be committed to “Bahay Pag-asa” is be 12 years old (Section 8).
A child who is 12 years to 15 years of age who commits a serious crime shall be deemed a neglected child under Presidential Decree No. 603, as amended, and shall be mandatorily placed in the Intensive Juvenile Intervention and Support Center (IJISC) of a “Bahay Pag-asa”. The local social welfare and development officer of the LGU where the offense was committed shall file, within 24 hours from the time of the receipt of the account regarding the commission of the offense, a petition for involuntary commitment to the IJISC (Section 8-A).
The court shall decide on the petition within 72 hours from its filing. The court will determine the initial period of placement of the child within the IJISC, which shall not be less than one year. The multi-disciplinary team of the IJISC will submit a case study and progress report to the court, which should include a psychiatric evaluation report, and recommend either the reintegration of the child to his/her family or the extension of the placement under IJISC (Section 8-A).
A child above 15 years but below eighteen 18 years of age shall be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment. The parents or other persons exercising parental authority are not exempted from civil liability arising from the child’s criminal actions (Section 7).
However, if the prosecution determines that the child acted with discernment, the child may be released on recognizance, committed to Bahay Pag-asa, or released on bail (see Sections 24 to 27); or, may be subject to a diversion program (see Sections 29 to 37). This is without prejudice to the applicable provisions of the Rules on Criminal Procedure but taking into consideration the rights of the child in conflict with the law.
How is discernment of the child determined? Discernment is preliminarily determined by a social worker and finally by the court. The determination of discernment shall consider the ability of a child to understand the moral and psychological components of criminal responsibility and the consequences of the wrongful act, and from this, whether a child can be held responsible for essentially antisocial behavior (Section 10).
From the moment a child is taken into custody, the law enforcement officer is required to: (a) explain to the child in simple language why he/she is being placed under custody; (b) advise the child of his/her constitutional rights; (c) properly identify himself/herself and present proper identification to the child; (d) refrain from using vulgar or profane words, and from sexually harassing or abusing, or making sexual advances on the child; (e) avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary; (f) avoid violence or unnecessary force; and (g) determine the age of the child pursuant to Section 7 of Republic Act No. 9344, as amended (Section 11).
The taking of the statement of the child in the police station shall be conducted in the presence of the following: (a) the child’s counsel of choice, or in the absence thereof, a lawyer from the Public Attorney’s Office; (b) the child’s parents, guardian, or nearest relative; and (3) the local social welfare officer. In the absence of the child’s parents, guardian, or nearest relative, and the local social welfare officer, the investigation shall be conducted in the presence of a representative of a non-government organization, religious group, or member of the Barangay Council for the Protection of Children (Section 14).
There are always laws and rules that will protect the child from the harshness of the legal process. However, beyond these protections, the parents should be able to guide and nurture the child to avoid conflicts or entanglements with the law. As a Biblical proverb teaches ― “Train up a child in the way he should go; and when he is old, he will not depart from it.”